CITATION: (1997) 6 SCC 241
BENCH: J. S. Verma (C.J.I.), Sujata Manohar (J.), and B. N. Kirpal (J.)
The present case involves a PIL filed before the court for the sexual harassment of women at workplace. This is an important judgement as it defines the word “sexual harassment”, lays out guidelines, preventive measures and duties of the employer, among other. The case brought the famous “Vishaka Guidelines” which were to be followed until the statute for sexual harassment of women at workplace comes into existence. The case looked at the issue through the fundamental right of women to have an adequate workplace environment and complaint mechanism.
FACTS AND ISSUE OF THE CASE
Bhanwari Devi was a social worker in Rajasthan. She was working for the state government to stop the child marriages prevalent in the rural area. In one of the case, she tried to stop the child marriage in Ramakant Gujjar’s family (his daughter) who were marrying the girl at the age of one year. In 1992, Ramakant Gujjar and five other men who wanted to punish her for this; gang raped her in front of her husband.[i] After the incident, the police and doctors were uncooperative in every way showing brutality and refusing to do the medical report or lodge the complaint. The case reached the trial court where the accused were acquitted. The High Court quoted, “It was a case of gang rape which was conducted out of revengeful situation”.[ii] Aggrieved by the decision of the High Court protests erupted by women groups, NGOs. Bhanwari Devi moved to the Supreme Court with the help from Vishaka (Group for Women’s Education and Research), women, social activists groups and NGOs by filing Public Interest Litigation (PIL)[iii].
The issue before the court were such:
“To provide for a judicial process to prevent sexual harassment of women at workplace, to fill the void in legislation”
DECISION BY THE COURT
The then Chief Justice of India, J. S. Verma wrote the judgement for himself and the bench. The court did not go on the matter of criminal nature as a separate case involving that is prevalent. The present petition involved the sexual harassment of women at workplace. There was no safeguard mechanism to protect the working condition or statute at force. Thus, there was the need for the mechanism to put in action. The court gave the guidelines for the same. It looked at international covenants and constitutional articles as well. It said that until the act comes into force by the Parliament, these guidelines will act as paramount in further cases. The court gave decision on these parameters:
The court looked at the fundamental rights and other constitutional rights in conflict with the issue. Article 14 gives everyone the right of equal treatment. This equality is given even in the place of employment or work. In the present case, the sexual harassment of women at workplace goes completely against Article 14 of the victim’s right. Article 15 prohibits discrimination on basis of sex. Thus, the unfair treatment towards women at workplace goes against the right of ‘gender equality’. Under clause 3 of Article 15, it provides for the power of state to make “special provisions for women”. Article 21 guarantees the freedom of life and liberty which is in clear violation as every person has right to life with dignity in his workplace as well. The court further looked at Article 19 (1) (g) where every person has freedom to “practice any profession or to carry out any occupation, trade or business”, a safe work place environment is necessary.
The court also looked at Article 42 which says that state shall “make provision for securing just and humane working conditions” which forms an integral part at workplace. Under Article 51 (c) and Article 253 read with entry 14 of the Union List, the court said that in the absence of any law on sexual harassment of women at workplace, the international conventions, treaties and agreements will come into the scenario. The court will provide measures till the Parliament enacts the law. Thus, the court has power under Article 32 for meeting the challenge of protecting sexual harassment of women at workplace.
ADOPTION of INTERNATIONAL CONVENTIONS
The court looked at international laws and legislations because there was absence of law on sexual harassment of women at workplace at that time. So, it is crucial to see the obligations of judiciary and enforcement power under Article 32. The court looked at Beijing Principles of Independence of the Judiciary in the LAWASIA region[iv]. These came into application in 1995 and said that the function and objective[v] of judiciary is to “to administer the law impartially among persons and between persons and the States”.
The court also looked at Articles 11 and 24 of the ‘Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)’[vi]. Article 11 states that there shall be measures taken to remove discrimination against women “in the field of employment” to ensure that gender equality between men and women with same rights. Clause (f) of Article 11 states the “protection of health and to safety in working condition” which is guaranteed under it. Article 24 provides for the realization of the rights by state parties at national level which are mentioned in this convention.
CASE CITED- NILABHATI BEHERA V. STATE OF ORISSA[vii]
The court looked at this judgement where the article of International Covenant on Civil and Political Rights was looked at. The court said that to go at the international law can in no way cause any harm. Where there is an unclear law or no law on the topic or issue at hand, the aid from the international covenants or norms can be taken. In the case, the issue, at conflict was related to the compensation and it being a part of “public law remedy under Article 32”. Thus, that right of compensation is different from private law remedy which forms the part of tort law. For that purpose, the court looked at international forum and laws to look at the fundamental rights which are a part of the Constitution. So, in the present case, to personify the objective of gender equality and the sexual harassment of women at workplace, the assistance of international laws is necessary.
GUIDELINES BY THE COURT (VISHAKA GUIDELINES)
Vishaka Guidelines were divided into several parameters for the protection from sexual harassment of women at workplace. These are as follows:
a) Duty of employer – Duty to prevent or deter the commission of sexual harassment of women at workplace by providing procedure, resolution and steps.
b) Definition of sexual harassment – “Sexual Harassment includes unwelcome sexually determined behaviour (whether directly or by implication) as:
i) Physical Contact and advances;
ii) A demand or request for sexual favours;
iii) Sexually coloured remarks;
iv) Showing pornography
v) Any other unwelcome physical verbal or non-verbal conduct of sexual nature.”
c) Preventive Steps – The preventive steps by the employer of public or private sector involves:
i) Express Prohibition of sexual harassment published and notified
ii) The rules/regulations relating to prohibition and penalties for offender
iii) Steps in case of private employers in Standing Order under Industrial Employment (Standing Orders) Act, 1946
iv) Appropriate work condition for women related to health, work, hygiene, leisure.
d) Criminal Proceedings – If action is an offence under Indian Penal Code or any other law, then complaint need to be made. Victim should have power to “seek transfer of the accused or their own transfer”.
e) Disciplinary Action – If the mis-conduct is there, a disciplinary action by the employer to be initiated
f) Complaint Mechanism – A mechanism for complaint instituted at the organisation to be addressed whether it is an offence in law or not.
g) Complaint Committee – i) Should consist of a special counsellor (who will maintain confidentiality),
ii)“Headed by a woman and not less than half members should be women,
iii)Involve third party like NGO or other body, if needed
iv)Annual report to the government.
h) Workers’ Initiative – To bring issues of sexual harassment at meetings and to be discussed in workers meeting, employer-employee meeting or any other.
i) Awareness – Notify the women employees in relation to guidelines and any legislation on the matter.
j) When sexual harassment is by outsider at workplace, employer to take necessary steps.
THE SEXUAL HARASSMENT ACT, 2013
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has now superseded the Vishaka Guidelines. The Act is somewhat similar to the guidelines but also has added new things. It lays down the complaint committees to be set out in the organisation. The Internal Complaint Committee (ICC) is the one that employer is mandatorily required to set up if there are “more than 10 employees at its office of branch of any gender”. The Local Complaint Committee (LCC) is set up “at the district level where there are less than 10 employees and ICC is not set up or complaint is against the employer”[viii].
The Act also lays down “Interim Relief” in the form of granting “statutory/contractual leave to aggrieved women”, and transfer to another branch or workplace. It also lays down the “Obligation of Employer” where he has to provide “safe working environment, organising workshop and awareness programmes, monitor the reports by ICC, among others”.[ix]
The present case is a landmark judgement which gave the power to the judiciary to form guidelines in a case where the legislation is not made. These guidelines had remained operative and applied on the cases till legislation (The Sexual Harassment Act) is brought into force. The sexual harassment of women at workplace is serious in nature. In conclusion, it can be said that gender equality is of utmost importance at the workplace of an individual. It is necessary to make sure that preventive steps are taken in the private and public organisations for ensuring at adequate work environment.
[i] http://lawtimesjournal.in/vishakha-vs-state-of-rajasthan/ [ii] http://www.legalserviceindia.com/legal/article-374-case-analysis-vishaka-and-others-v-s-state-of-rajasthan.html [iii] https://blogs.lse.ac.uk/vaw/landmark-cases/vishaka-v-state-of-rajasthan/ [iv] https://www.hurights.or.jp/archives/other_documents/section1/1995/08/beijing-statement-of-principles-of-the-independence-of-the-judiciary-in-the-lawasia-region-beijing-1.html [v] “The objectives and function of the judiciary include:
a) To ensure that all persons are able to live securely under the rule of law;
b) To promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and c) (mentioned above)”[vi] https://www.ohchr.org/documents/professionalinterest/cedaw.pdf [vii] 1993 AIR 1960 [viii]http://www.mondaq.com/india/x/348338/employment+litigation+tribunals/Overview+Of+The+Sexual+Harassment+Of+Women+At+Workplace [ix] https://www.youthkiawaaz.com/2019/07/understanding-the-sexual-harassment-of-women-at-workplace-act-2013/
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